February 23, 2016

“This is his moment,” Mr. McConnell said on the Senate floor, addressing the president. “He has every right to nominate someone. Even if doing so will inevitably plunge our nation into another bitter and avoidable struggle, that is his right. Even if he never expects that nominee to actually be confirmed but rather to wield as an electoral cudgel, that is his right.”

How influential — in this new firmness — was the emergence of the Biden clip from 1992?

Republican maneuvering came as Democrats scrambled to contain any damage from Joseph R. Biden Jr.’s floor speech as a senator in June 1992 urging President George Bush not to make a nomination to the Supreme Court until after that year’s presidential election.... Aides to Mr. Biden also insisted on Tuesday that he had been warning against filling a vacancy created by a voluntary resignation of a justice rather than a vacancy created by an unexpected death. In any event, no such vacancy occurred.

86 comments:

"How influential — in this new firmness — was the emergence of the Biden clip from 1992?"

Helpful, in an after-the-fact way. But the decision was made long before the Biden clip. If any outside influence was important, just look at the mess in the Rep primaries, and the appeal of Trump to the Rep base. The Senate Reps would be crazy to ignore that reality, and as it happens, they have no desire to do so.

The Senate will hold no hearings, much less confirm, any Supreme Court nominee put forward by President Obama before the November election, Senator Mitch McConnell of Kentucky, the majority leader, stated unequivocally on Tuesday, as he urged the president to reconsider even submitting a name.

All politics is local. Every Republican senator who aided Obama in even the smallest way to appoint another SCOTUS judge would soon be staring at a primary challenge back home. There's no way in hell that the Republican base would forgive or forget that sin.

I continue to believe that the populist rhetoric is too flimsy and contrived to survive the barrage to which the media will subject it. Nevertheless, I applaud the CGOP for doing the right thing even if for dubious reasons.

Speaking of the media, however, I do want to mount a preemptive strike. The letter mentions the obstructionist tactics of Harry Reid and Pat Leahy during the second President Bush's first term, tactics which delayed the appointment of John Roberts, for example, for nineteen months. And the only reason that they didn't make it twenty or more was because an election wrested power from their hands. Nevertheless, to its credit, the Washington Post was highly critical of the Democrats, publishing several pieces urging an end to the procedural chicanery. See, e.g., editorial, Give them hearings, the Washington Post, Nov. 30, 2001, final edition, pg. A40 ("[Leahy] has offered no reasonable justification for stalling on these nominations . . . controversial nominees are no less entitled to hearings. Failing to hold them in a timely fashion damages the judiciary, disrespects the president's power to name judges and is grossly unfair to often well-qualified nominees"). If the liberal media was critical of the Democrats over this sort of ting, it stands to reason that they will be at least that critical of us. But we should not be quick to accuse them of hypocrisy without being sure that they did not, like the WaPo, fault the dems last time around the merry-go-round.

Well, the difference between a resignation or retirement and a death is that usually (since Earl Warren announced his retirement in 1968) the retirement/resignation letter says that the retirement will be effective upon the appointment of his successor.

But Biden in 1992 was talking about there being a court vacancy, so not so. At least he wasn't limiting himself to that special case. I don't think he actually discouraged a retirement - I think Clinton got Ted Kennedy to get Byron White to retire. No other conservative judges retired any time around 1992. Rehnquist was ill. When he thought he could stay another year O'Connor decided to retire in 2005 - then Rehnquist died. I think the justices probably felt none of them could retire during the 2001-2005 presidential term because they would have been instrumental in getting the president who replaced them into the presidency.

Senator Schumer refused to answer the question as to what was different now directly but said his answer that people should "do their job." That's the Democratic slogan.

He's rejecting a hearing so that any self respecting person will not agree to a nomination. No appeals court judge is going to serve as a political football when there's nothing to be gained. So it'll probably be some Dem senator who agrees in order to advance the partisan politics. Expect Amy Klobuchar to be nominated

The GOP has already been denying votes on lots of court of Appeals nominees, but that had not generated much press since it has become typical. But denying votes to Supreme Court nominees has not been typical. Even Clarence Thomas, who replaced a liberal icon and swung the left-right balance on the Court, got a favorable vote from a Democratic-controlled Senate. At this rate, the Court may go to 7 before it goes to 9.

Republican maneuvering came as Democrats scrambled to contain any damage from Joseph R. Biden Jr.’s floor speech as a senator in June 1992.

Not just a Senator, but Chairman of the Senate Judiciary Committee.

Using "the Biden Rule" is perfect for framing Democrat hypocrisy. Not sure if there are any examples of Republicans repeatedly proposing something similar--usually they are accused of being to deferential Democrat President nominations.

This obstructionist Senate may end up paying a price, so be it. It would be great to win back the Senate.

"-Strong majorities of voters- 58/35 in Ohio and 57/40 in Pennsylvania- think that the vacant seat on the Supreme Court should be filled this year. What’s particularly noteworthy about those numbers- and concerning for Portman and Toomey- is how emphatic the support for approving a replacement is among independent voters. In Ohio they think a new Justice should be named this year 70/24 and in Pennsylvania it’s 60/37. Those independent voters are going to make the difference in these tight Senate races, and they have no tolerance for obstructionism on the vacancy.

-Voters are particularly angry about Senators taking the stance that they’re not going to approve anyone before even knowing who President Obama decides to put forward. By a 76/20 spread in Pennsylvania and a 74/18 one in Ohio, voters think the Senate should wait to see who is nominated to the Court before deciding whether or not to confirm that person. Toomey and Portman are out of line even with their own party base on that one- Republicans in Pennsylvania think 67/27 and in Ohio think 63/32 that the Senate should at least give President Obama’s choice a chance before deciding whether or not to confirm them."

If Senate Democrats cared about "doing their job", they could have, you know, passed a budget since 2009. You know, practically their *only* job, and as far as I know a job no previous Senate ever failed to perform for even one year, never mind seven.

"By a 76/20 spread in Pennsylvania and a 74/18 one in Ohio, voters think the Senate should wait to see who is nominated to the Court before deciding whether or not to confirm that person."But eh GOp can make it up by promising to keep Gitmo open for business!WASHINGTON, D.C. -- Twenty-nine percent of Americans support closing the terrorist detention camp at Guantanamo Bay, Cuba, and moving its prisoners to U.S. prisons, while two in three (66%) oppose the idea. Despite the recent controversy surrounding the release of five Taliban prisoners held at Guantanamo Bay in exchange for U.S. Army Sgt. Bowe Berghdal's release from Afghanistan, Americans' views have barely budged since 2009.

Or the GOP can make it up by opposing race preferences in college admissions:PRINCETON, NJ -- Two-thirds of Americans believe college applicants should be admitted solely based on merit, even if that results in few minorities being admitted, while 28% believe an applicant's racial and ethnic background should be taken into account to promote diversity on college campuses. Three-quarters of whites and 59% of Hispanics believe applicants should be judged only on merit, while blacks are divided in their views.

Or they could make up the difference by opposing amnesty for illegal aliens! Gallup polling about blanket amnesty for illegal immigrants more generally finds the public widely unsympathetic to this proposal, with only 6% supporting it. An additional 20% think that citizenship should be granted selectively to illegal immigrant workers who have been here a specified length of time and paid taxes, but two-thirds of Americans think that the United States should not do anything to facilitate citizenship for illegal immigrants.

If EVER a Republican gets the Presidency again, it will be fun to watch the Democrats use the exact same obstructionis tactics that these fools have done these last seven years. Maybe they can have a secret meeting to plan how they will try to make him be a one term President on the day of the Inauguration. Want to play 'goose/gander'? Democrats should follow Republican precedent and do it like they're on steroids.

Pretty strong words from a member of a party that has been kicked out the House, the Senate, governorships and state houses all across the country! Face it, Democrats are one election loss away from being irrelevant. But it's the Republicans who are in deep trouble!

"Democrats should follow Republican precedent and do it like they're on steroids."I hope the Democrats don't use forged documents to try and prove this hypothetical Republican president was AWOL from his military duty! That would be really evil! And yet, still probably not effective!

I seriously doubt any Republican will win the Presidency for decades to come, but Democrats may one day win the House, Senate and Presidency again. This time they should ram through as much as they possibly can, show no mercy. Obama was much too willing to work with the Republicans, huge mistake. I don't think either Clinton or Sanders will follow that track.

Karma is a booger. Once the Dems "borked" Bork--led by the sainted Teddy Dine em and Dunk Em Kennedy, it was inevitable that what goes around will come around. Took the Rethugs a while to learn the lesson (nobody ever said that your average Republican senator was either (A) a mental giant; or, and more importantly (B) knew how to get down and fight dirty like a Democrat.)

So now, good old Slow Joe Biden has opened his mouth, as he has done so often, and said something stupid. The Biden Rule--straight from Joe's mouth to Mitch McConnell's hand. Mitch may just stick that Biden Rule where it hurts.

Citing the "Biden Rule" is criticism of good old Slow Joe? No way Jose. When Biden enunciated that rule, he had the wisdom of Solomon, and was a legislative giant, a true Solon, for the ages! Citing the Biden Rule? We come to praise him, not to bury him!

Blogger MadisonMan said...The obvious question: How soon before the next election do Presidential Powers to nominate and Senatorial responsibilities to hold hearings fall by the wayside?

Apparently, 8+ months. So, at least 16% of a President's term of office.

2/23/16, 4:07 PM

Given the new rules of the game that we have learned from our liberal friends, if the Democrat president is in opposition to the majority in the Senate and/or House, I suspect we can attempt to stretch it out 18 months or more given how long the presidential process seems to run. But, if we have a Repub president and Repub controlled Senate and House, I see no reason that they cant confirm the Repub Supreme Court nominee right up to the day before the inauguration of a new Democrat president should he/she replace an outgoing Republican president.

Shit this stuff is easy now that we see how to play up to the edge of the rules of the game to keep us in power. Doing the gentlemanly thing or playing the loyal opposition is for pussies. You can fuck us over once or twice, but eventually conservatives and Republicans can get down and dirty and play for power just like our Democrat enemies. Please note I have chosen the word enemies because that is what they are now. We are in a cold civil war. I dont see them as my countrymen anymore, I see them destroying my country and I will do whatever it takes to keep it for me an my children. If that gets me called a hypocrit....so what? I'll get over it.

Terry, I will be here to say "I told you so". I have faith in the majority of American people, that they're are smart enough to not elect a Trump, a Cruz ( if he's even eligable, ask Trump) or even a Rubio.

This time they should ram through as much as they possibly can, show no mercy. Obama was much too willing to work with the Republicans, huge mistake.

How has that strategy worked out for Pelosi and Reid? Ha ha ha! How many Republican votes did Obama get on O-Care? Zero. Is that what you call "working" with Republicans?

Do you have any more like this? That last one was a ripper! Obama took a wrecking ball to the Democrat party. The country will not trust the Democrats with that kind of power again. It was a reaction against the war and the Democrats took it to be a mandate for upending the whole health care system. Two years later America corrected the mistake.

Blogger Amanda said...If EVER a Republican gets the Presidency again, it will be fun to watch the Democrats use the exact same obstructionis tactics that these fools have done these last seven years. Maybe they can have a secret meeting to plan how they will try to make him be a one term President on the day of the Inauguration. Want to play 'goose/gander'? Democrats should follow Republican precedent and do it like they're on steroids.

Democrats invented these tactics. Now the shoes is on the other foot,and they are whining about the fit. Google Robert Bork. I see you are ignorant of history, so I am here to help.

In 1987, the NYT said this: "In an Oct. 5, 1987, editorial opposing President Ronald Reagan’s nomination of Robert Bork to the high court, the Times’ editorial board made a very different argument, contending that the party in control of the Senate has “every right to resist” a president’s Supreme Court nominees:

The President’s supporters insist vehemently that, having won the 1984 election, he has every right to try to change the Court’s direction. Yes, but the Democrats won the 1986 election, regaining control of the Senate, and they have every right to resist. This is not the same Senate that confirmed William Rehnquist as Chief Justice and Antonin Scalia as an associate justice last year."

So the science is settled. Since Republicans won the Senate on 2014, they have every right to resist. No less authority than the NYT says so,so it must be true.

This obstructionist Senate may end up paying a price, so be it. It would be great to win back the Senate.

The only people who think that will vote Democrat anyway. I know Democrats really wish there was some way they could force the appointment another "living constitution" justice, but that not going to happen unless a Democrat wins this year's election. Maybe not even then.

It's really weird to see Amanda describe past Democratic behavior (obstructing nominations, ramming everything they can manage through on the basis of transient control) as threats of what the Democrats might do in the future.

Amanda, nobody is even slightly afraid of a President being less willing to work with Republicans or showing less mercy than Obama. Because contrary to your delusions, Obama was not a micrometer more conciliatory than political reality absolutely forced him to be.

Thanks to the constitutional structure of the Senate and the demographics of states, absolutely nothing can ever pass the Senate without the approval of politicians elected by an electorate right of the American center. Period, end story. Win the Senate again, abolish the filibuster completely (or bypass it by pretending it's a budget bill, like with Obamacare), you still are going to be limited in legislation as to what you can convince the senator of the state that is 26th-most-progressive will not get him driven from office. That's it.

Terry, I will be here to say "I told you so". I have faith in the majority of American people, that they're are smart enough to not elect a Trump, a Cruz ( if he's even eligable, ask Trump) or even a Rubio.You may well be dissapointed, Amanda. The American people have elected, twice, a president who holds both the constitution and the wishes of the American people themselves in contempt. Hint: that president wasn't a republican.Oh, and I am not a republican, Amanda, so don't think of any of the republicans as 'my' candidate. I have contempt for anyone who believes that some politician or political party is going to make America great. Only the American people themselves can do that. That makes me a conservative, not a republican.

Steven wrote:"Obama was not a micrometer more conciliatory than political reality absolutely forced him to be."Sometime around 2010 , some Lefty pundit -- Milbank, maybe -- claimed that Obama was a moderate because he didn't nationalize the banks in 2009.Political reality would have put the breaks on that pretty fast. Obama would have nationalized the banks if he could have. Obama wan the 2008 election 53% to 46%. He had no mandate to go any further Left than he has gone Left, and his party has paid the price for his radicalism in control of state houses, governorships, and control of the US house and senate. No republican in office seems to believe that not cooperating with Obama is going to cost him or her their seat in November.

I don't see the Biden speech as adding much to the equation. The pretense that anyone is trying to take a principled position is laughable. Of course it's all just political maneuvering; these are political institutions.

That said, if one were trying to consider a principled position, then I think it is certainly necessary to concede that there is an important distinction between a justice's voluntary retirement and an unexpected death.

The Democrats smeared and destroyed Bork because they disagreed with his philosophy. They tried to destroy Thomas. Then, after the Repubs voted for Ginsberg and Beyer by record margins, the Democrats repaid the Repubs by trying to vote down Roberts and Filibustering Alito.

To cave on this would be unforgivable. Although with McConnell "no" never means "no".

McCrazy would love to join the Democrats on this and get more loves and kisses from the WaPo and the New York Times but he's facing a tough primary challenge. Watch for McCrazy stab McConnnell in the back after the primary.

“Divided loyalties” and security concerns are keeping a Queens dentist with family in Israel from offering his services to the military at an upstate, off-base Navy clinic.

All Gershon Pincus wanted to do after 35 years in private practice was find a way to give something back to his country.

“I can think of no better way to experience the sunset of my career than by using my professional skills as a dentist to assist those who have chosen to serve in the United States military,” Pincus, 62, said in an affidavit.

But he could not get a security clearance.

The reason?

During two interviews seeking security clearance for the civilian job, Pincus discussed his family connections to Israel, where two of his siblings and his elderly mother, who suffers from dementia, live.

One of Pincus’ children, Avi, had served briefly in the Israeli army before dying of a drug overdose.

As for Pincus’ own connections, he made three visits in the past decade — including one for his father’s funeral. He has no personal friends or financial interests there. He calls his mother, who lives there, once a week.

Madison Man - I think you are little confused. The president's legal power to nominate is as strong as ever. He has the legall power to nominate whomsoever his little heart desires. And the Senate has no legal obligation ever to act on a nomination, so nothing's changed there, either. The Senate has the legal right to sit on a nomination and do nothing right after a president is sworn in. What has changed in the last 332 days (but who's counting) of President Obama's presidency is the politics of it, which usually compels the Senate to act on nominations. Too bad, so sad. Hope this explanation clarifies things for you.

Amanda - you may just get your wish that the Dems retake the Senate. The geography is stacked in their favor this time, but the next two elections after this one are stacked in the Republicans favor, which means they have a decent chance at retaking the Senate in 2018, and increasing their hold in 2020. But, I think that you have much less chance at maintaining control of the Presidency. The second candidate is an old left wing loon who run as a socialist until just recently. And, his opponent, still the presumptive nominee, is an old sickly white woman with no discernable political skills, and little enough honesty, who is trying to get to the left of her opponent, and whom we are discussing on another thread right now whether or not she actually gets prosecuted for mishandling of national security information and public corruption before or after the upcoming election, or wrangles a last minute Presidential pardon.

While I thought this wasn't a great strategy, it is nice to see the GOP playing this relatively well--particularly with bringing up past Democratic hypocrisy on this issue which makes them the last people who can object over this. Now the only question is--can they hold on to the Senate? Those four or so swing seats are more crucial than before. The next presidential term is likely to have three Supreme Court openings.

"If EVER a Republican gets the Presidency again, it will be fun to watch the Democrats use the exact same obstructionis tactics that these fools have done these last seven years. Maybe they can have a secret meeting to plan how they will try to make him be a one term President on the day of the Inauguration. Want to play 'goose/gander'? Democrats should follow Republican precedent and do it like they're on steroids."

"Terry, I will be here to say "I told you so". I have faith in the majority of American people, that they're are smart enough to not elect a Trump, a Cruz ( if he's even eligable, ask Trump) or even a Rubio."

That would be the same American people who elected and then re-elected Reagan, you know.

The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.

Amanda - no, the President does not have the power to "appoint" Supreme Court Justices. He can just nominate them, and the Senate can then, if it wishes, confirm them through their Advise and Consent power. Appointing people is a different process, that does not involve the Senate. And, note, it is called the Biden Precedent for a reason.

The 3/5 was an implied racist claim. Slaves were only counted as 3/5 of non-slaves when determining representation, until Republican President Lincoln and the Republican Congress passed the Amendments that ended it. Of course, President Obama is not descended from black American slaves, but rather, from slave owners (probably on both sides, but most importantly here, on the side of his white mother). Mark shows himself to be a racist, with little if any connection to historical reality, by tying the 3/5 requirement to Obama not getting a Justice confirmed this year. He seems to think the opposite, that because Obama is half black, that he should get the sort of confirmations that pretty much every significant Dem politician has denied Republicans (and, why they are now calling it the "Biden Precedent", though it could just as easily been called the Schumer, Kerry, Obama, etc. Precedent).

"Terry, I will be here to say "I told you so". I have faith in the majority of American people, that they're are smart enough to not elect a Trump, a Cruz ( if he's even eligable, ask Trump) or even a Rubio."

That would be the same American people who elected and then re-elected Reagan, you know.

Sadly, that's not really true. 30 years of massive immigration, the complete capture of academia by the Left and the end of the Cold War has produced a very different electorate.

I am reminded of Archie Bunker, faced with his daughter's complaints about firearm deaths, asking her if she'd be happier "if they was all throwed out the window, instead?"

Obama will nominate a candidate. Vote that candidate down in committee after about three months. Announce that the Senate, as Obama has asked, has sped the nominee through the process to a successful conclusion, but that the nominee was in no way a person deserving a seat on the Court, and that Obama should have known that.

Obama will nominate another candidate. Vote that candidate down in committee after about three months. Repeat squeals about the extremism of the candidate, and decry Obama politicizing the court. Add that Hillary's support of this candidate makes her unfit for the presidency.

Obama will nominate another candidate. Vote that candidate down in committee after about three months (right before the election). Scream from rooftops that Democrats are EEEEEEEVIL and can't even nominate a worthy candidate to the Supreme Court, and that Hillary should be prosecuted to the fullest extent of the law for her mishandling of classified documents that cost lives of intelligence assets.

Your suggestion, while reasonable fails (for me) on two counts. First, it would not matter a bit in terms of the way that the Dems and the media (ah, but I repeat myself) will play it. It will be called racism and a dereliction of duty by the Senate, and all efforts to even appear reasonable will be ignored. Second, it will be a pose, and everyone will see it for what it is...a pose. Perhaps the time has come to call things what they are and go forward from there. I suspect that one reason Trump (who I do not care for) is doing so well is his disinclination to use weasel words to avoid saying what everyone with eyes can see is true.

I suggest the following: say what everyone knows...the stakes are high, and Obama cannot be trusted with this nomination. The Senate will be doing its job this way, and if they can be particularly clever in their wording, Obama (notoriously thin-skinned as he is, particularly when told 'no') will possibly say something silly and make our case for us. The last two elections demonstrated quite conclusively that getting the base out to vote is far more efficient in generating votes than pandering to some group of swing voters (i.e. people so stupid that they couldn't pick a side), so in addition to reminding the Democrats why the precedent that they set with their tactics was such a bad idea (apparently people like Amanda seem to have forgotten already...typical for weak minds I suppose), we could make good use of one of their better ideas...election strategies that target the base.

Explain why Obama isn't worthy of this choice, and let the people decide. I suspect that the results will be quite satisfactory